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Hambrick vs. Crawford.

to present their claims was duly given, but defendant failed to present his, thereby allowing the estate of said Johnson to be paid to debts of inferior dignity, and to be distributed among his heirs-at-law.

The defendant has settled, as administrator, with all the heirs-at-law of Sarah James, except one, upon the basis that the debt which he is now seeking to collect, was worthless. Therefore he is not entitled to collect anything from complainant. But he has levied upon complainant's lands, wherefore he prays the writ of injunction, etc.

Complainant subsequently amended his bill by setting forth the following facts: At the September term, 1869, of the superior court of Clayton county, said judgment was vacated on the motion of James F: Johnson, on the ground that the consideration of the same was slaves. Thus matters stood until September, 1873, when the defendant caused a levy to be made upon the property of complainant. He at once employed counsel, who advised him that under the recent decisions of the supreme court in the cases of Prescott vs. Bennett et al., and Tison, administrator, vs. McAfee et al., as more than three years had elapsed since said vacating order was rendered, said judgment was null and void, and that the proper mode of availing himself of this defense was by affidavit of illegality. Complainant fully informed his said counsel as to the indulgence which the defendant had given to Johnson, as heretofore set forth, but was advised that it was unnecessary to make any separate defense of that character to a judgment which had been vacated as to all the defendants. Relying upon this advice, complainant filed his affidavit of illegality, setting up the fact that the judgment had been vacated, but said defense has been overruled by the supreme court. Complainant fears that under the strict rules of pleadings applicable to a second affidavit of illegality, that the same would be dismissed if he were now to set up in that form the indulgence to Johnson, and the other defenses hereinbefore indicated, as a discharge to bim, as they were all known to him at the time his first affidavit was filed. He


Hambrick vs. Crawford.


was misled by a mistake of his counsel as to the law, and the latter was misled by decisions of the supreme court; wherefore he prays the interposition of a court of equity.

The defendant demurred to and answered the bill. The "bill and answer, respectively, were supported by numerous affidavits. The answer and affidavits are omitted here as immaterial.

When the hearing of the motion for injunction came on the defendant insisted that his demurrer should first be disposed of. This the court refused, but required the defendant to submit all of his defense together. To this ruling the defendant excepted.

After argment had, the injunction was ordered to issue and defendant excepted.

PEEPLES & HOWELL; J. M. HAMBRICK, for plaintiff in


SPEER & STEWART; John L. DOYAL, for defendant.


The notes of decision, as read from the bench, and set out above, present very fully the views of the court on the several points embraced in this case.

The remedy by affidavit of illegality was adequate and ample, if the defendant had used it, to the full extent, when he had recourse to it. The mistake of his counsel in confining the affidavit to one ground only, which proved insufficient, cannot be recognized as a good excuse for omitting the other grounds. If the mistakes of counsel in their professional opinions, acted upon in the conduct of litigation, were cause for renewing or continuing the litigation after judgment, there would be no end to anything. In the nature of things, the risk of such mistakes must be incurred, and there is no relief against their consequences. Nor is the matter, in a legal or judicial aspect, the least altered by the fact that the given mistake may have been committed in following and re

Hambrick vs. Crawford.

lying upon unsound judicial decisions made in previous cases of like kind. The books are full of unsafe precedents. The two decisions accepted by counsel as a guide in this case were not concurred in by a full bench, and he had that much to warn him of their mutability. But did they prove unsound? or were they varied or departed from ? Rather, were they not followed and applied in deciding the very case which the counsel made under them? See 50th Georgia Reports, 266, 279, 582; 53d Ibid., 352.

All the matters set out in the bill as reasons for arresting the enforcement of the execution against the complainant's property, would be as available, at law, by affidavit of illegality, as in equity, by injunction. In so far as they are good at all, they are matters of plain legal right, though which of them are good and which not we do not determine. If there had been a sufficient excuse for leaving them out of the affidavit of illegality which was filed, a second affidavit could have been resorted to; for no suitor is compelled to appear on the equity side of the court : Code, section 3082; and when an execution is proceedling illegally by levy upon property, the remedy by affidavit of illegality is given in all cases : Code, section 3664. The rule of court whicN declares that no second affidavit shall be receivedl, is to be construed as limited by these broad provisions of the Code. Generally, a second affidavit cannot be received, nor should it be. But where the grounds it alleges were not embraced in the first, and were left out without any fault, negligence, error or oversight of the party or his counsel, and it so appears on the face of the second affidavit, it would be a clear violation of the Code to deny this remedy and force the party into equity.

Judgment reversed.

Killen et al. vs. Marshall.

GEORGE W. KILLEN et al., executors, plaintiffs in error, vs.

ABSALOM MARSHALL, defendant in error.

1. Where the complainants allege that defendant was indebted to their tes

tor, and had committed a fraud upon him by mortgaging lands to which he had no title, and had immediately after his death applied for and obtained homestead and exemption fraudulently, setting out the acts of fraud, and that this was done before they had received letters testamentary and quali

fied, and while the estate was unrepresented: Held, that there is equity in the bill. 2. Even though the will may have been proven pending the application for

homestead, and whilst the note of testator was in suit by one of the executors as bearer, yet when the entire transaction occurred in a few weeks

after testator's death, and before the grant of letters : Held, that the executors are not estopped by failing to resist the homestead

pending the probate and qualification as executor.

Equity. Administrators and executors. Homestead. Fraud. Estoppel. Judgments. Before Judge Hill. Houston Superior Court. November Adjourned Term, 1874.

Reported in the opinion.

WARREN & GRICE, by brief, for plaintiffs in error.
H. M.'HOLTZCLAW, for defendant.

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1. The bill was dismissed, and the judgment of the court dismissing it is the error assigned. It alleges that Baskin, the tes tor of complainants, beld a note on defendant, Marshall, for some $1,200 00, secured by mortgage on two lots of land, as Baskin thought, but the title was not good in Marshall, and the note could not be collected out of the mortgaged property ; that Baskin died, and before letters testamentary were issued to complainants, Marshall had a homestead and exemption fraudulently set apart to his property, leaving out of his schedule sundry notes and accounts, and afterwards realizing upon some of them, and wasting some of the personalty, on purpose to defraud creditors, by scattering large

Killen et al. vs. Marshall.

quantities of cotton seed over his land exempted; that his realty exempted is worth $3,000 00, and the personalty $1,500 00, and offering to take each at those figures ; that five days after Baskin's death, Marshall applied, and in a short time thereafter, before the letters issued and executors qualified, the homestead and exemption were set apart to him. The bill does not allege when the will was admitted to probate, but it is inferable that it was pending these proceedings to set apart the homestead. We think the case made by this bill entitles complainants to a hearing in equity. The case is within the principle ruled in Brown vs. Thornton, 47 Georgia Reports, 474. The fact, if it were true that the will had been proven before the homestead and exemption were set apart, would not take this case out of the principle ruled there, in our judgment; because, while the executors might have done many things after probate, and before their qualification, we do not think that the estate should be estopped by their failure to act in a case of this kind.

2. Nor do we think the estate should be estopped because the note was sued by Killen, one of the executors, as bearer, even if that suit was brought by him before the homestead was set apart: Code, section 2438. If we analogize the duties of executors in such cases to those of administrators under temporary letters, the estate would hardly be estopped ; and as the case made by the bill, which the judgment of dismissal admits to be true, is one of gross fraud, sufficient in law to annul this entire exemption and homestead, as to creditors, Code, section 2005, and as the complainants are wholly remediless at law, and the case is one for the interposition of equity, we reverse the judgment, and rule that the court below set the cause for a hearing.

Judgment reversed.

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